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COMMONWEALTH PENNSYLVANIA v. ALAN N. FELS (04/20/81)

filed: April 20, 1981.

COMMONWEALTH OF PENNSYLVANIA,
v.
ALAN N. FELS, APPELLANT



No. 908 OCTOBER TERM, 1979, Appeal from the Order of the Court of Common Pleas, Criminal Trial Division, of Bucks County, at No. 407 of 1979.

COUNSEL

Donald M. Moser, Philadelphia, for appellant.

Joseph Frontino, Assistant District Attorney, Doylestown, for Commonwealth, appellee.

Spaeth, Brosky and Van der Voort, JJ. Spaeth, J., files a concurring opinion.

Author: Van Der Voort

[ 286 Pa. Super. Page 233]

Appellant was charged in Bucks County with possession of cocaine with intent to deliver. He was also indicted in the Federal Court for the Eastern District of Pennsylvania with conspiring to distribute cocaine. All charges emanate from the same criminal episode which occurred on January 7, 1979.

On April 10, 1979, following dismissal of a pretrial motion to suppress, the Federal Court accepted appellant's plea of guilty, conditioned, however, upon a reservation of appellant's right, after sentencing, to appeal the denial of his pretrial motion to suppress.*fn1

On April 18, 1979, appellant filed a motion to dismiss the prosecution in Bucks County on the grounds of double jeopardy.*fn2 The Bucks County Court dismissed the motion to dismiss and appellant has appealed the order to this Court.

[ 286 Pa. Super. Page 234]

The federal conviction has since been affirmed. United States v. Fels, 620 F.2d 290 (3rd Cir. 1980); cert. denied, 447 U.S. 925, 100 S.Ct. 3018, 65 L.Ed.2d 1117 (1980).

The lower court in its opinion recognized that the Pennsylvania law holds that one is placed in double jeopardy if he has "received an acquittal or its equivalent or a sentence which is no longer subject to attack." The court cited Commonwealth v. Baker, 413 Pa. 105, 196 A.2d 382 (1964); Commonwealth v. Melton, 406 Pa. 343, 178 A.2d 728 (1962); Commonwealth ex rel. Farrow v. Martin, 387 Pa. 449, 127 A.2d 660 (1956); Commonwealth ex rel. Walker v. Banmiller, 186 Pa. Super. 338, 142 A.2d 758 (1958); and others. The court however, concluded that in the present case the plea in the Federal Court was a "conditional plea of guilty", and that the plea of double jeopardy in the Bucks County proceedings was therefore premature.

Appellant contends that the plea in the Federal Court proceedings and sentencing amounts to a final adjudication of guilt, subject only to an appellate review of the legal question involved in appellant's pretrial motion to suppress. Appellant argues that his legal posture in the Federal Court is the same following the entry of the conditional plea as if he had been found guilty by a jury with the legal question involved in the pretrial motion still preserved for appellate review. There appears to be merit to this argument.

We note, further, that the procedure of entering conditional pleas of this general type has been approved by the Third Circuit Court of Appeals in United States v. Moskow, 588 F.2d 882, 887 (1978); ...


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